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Document  No.  21. 


IX  SENATE. 


[SESSION  1S55 


REPORT 


OP    THE 


SPECIAL  COMMITTEE 


ON 


STATE   PRISON. 


SUBMITTED  MARCH  29,  1855. 


[B.  B.  REDDING,  STATE  PRINTER 


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EEPOET 


Mr.  President  : 

The  special  Committee  on  State  Prison,  in  obedience  to  the  instructions  of 
the  Assembly  requiring  them,  in  conjunction  with  a  special  Committee  appointed 
by  the  Senate,  to  visit  the  State  Prison  and  examine  into  the  condition  and 
management  of  that  institution,  have  performed  that  duty,  and  respectfully  ask 
leave  to  make  the  following  report  : 

In  consequence  of  the  various  rumors  which  had  obtained  circulation  in  con- 
nection with  the  condition  and  management  of  the  State  Prison,  your  Committee 
deemed  it  their  duty,  after  a  personal  inspection  of  the  Prison  and  Prison 
grounds,  to  call  before  them  witnesses  and  make  a  thorough  investigation  as  to 
the  correctness  of  these  rumors,  and  also  ascertain  what  was  the  cause  of  the 
numerous  escapes  of  convicts  from  the  Prison.  We  have  also  collected  a  great 
deal  of  testimony  as  to  the  profit  or  loss  of  the  present  lessee  of  the  State 
Prison  by  the  Prison  labor,  and  as  to  the  possibility  of  making  that  institution 
support  itself  or  become  a  source  of  revenue  to  those  who  are  entitled  to  the 
labor  of  the  prisoners.  From  this  mass  of  testimony,  your  Committee  are 
forced  to  the  conclusion  that  the  system  as  at  present  practiced  by  the  lessee  is 
seriously  objectionable,  and  wholly  fails  to  accomplish  the  great  object  which 
should  be  aimed  at  by  the  establishment  of  a  State  Prison,  namely,  the  cer- 
tainty of  punishment,  according  to  our  criminal  code,  and  the  moral  reformation 
of  the  convict. 

In  consequence  of  the  peculiar  management  of  the  convicts,  and  the  police 
regulations  of  the  Prison,  it  was  difficult  to  obtain  perfectly  satisfactory  evidence 
of  the  number  of  convicts  now  confined  in  the  State  Prison.  We  place  the 
nunilwr,  however,  at  three  hundred  and  thirteen.  The  Inspectors  estimate  the 
number,  at  the  date  of  their  report  of  January  30th,  at  two  hundred  and 
seventy-five,  while  the  lessee,  J.  M.  Estell,  in  his  report  to  the  Legislature, 
dated  January  28,  states  the  number  as  over  three  hundred.  From  this  evi- 
dence, together  with  such  information  as  we  could  gather  at  the  Prison  gronnds, 
we  set  down  the  number  as  above  stated.    Since  the  visit  of  your  Committee  to 


1h*  Prison,  we  are  informed  that  about  fifty  new  convicts  have  been  received, 
making  the  number,  at  this  time,  three  hundred  and  sixty-three.  Near  one 
half  of  these  prisoners  are  worked  at  Marin  Island,  in  the  Bay  of  San  Pablo, 
about  two  and  a  half  miles  from  the  Prison.  The  others  are  engaged  at  the  Prison, 
and  in  running  vessels  to  San  Francisco,  transporting  stone  and  brick,  and  in 
getting  wood  from  the  hills  with  which  to  burn  brick  kilns.  The  convicts  are 
required  to  labor  from  sunrise  un^l  %sunset,  except  the  time  necessarily  engaged 
in  eating  their  meals. 

Although  there  was  some  complaint  among  the  convicts  as  to  the  kind  and 
quantity  of  food  and  clothing,  yet  your  Committee  believe  that  they  have  no  just 
ground  for  complaint  in  this  particular.  The  health  of  the  convicts  seemed  to 
be  remarkably  good.  In  accordance  with  the  provisions  of  an  Act  passed  May 
11th,  1853,  a  Prison  has  been  erected,  with  forty-eight  cells  on  the  second 
story,  which,  by  the  present  arrangement  of  the  lessee,  of  confining  four  pris- 
oners in  a  cell,  will  safely  confine  one  hundred  and  ninety-two.  The  lower 
story  is  divided  into  an  office,  guard  room,  and  a  long  room  in  which  prisoners 
are  confined.  The  Prison  is  a  very  substantial  building,  and  altogether  safe  for 
the  confinement  of  prisoners  at  night.  Those  engaged  at  work  on  Marin  Island 
are  confined  at  night  on  board  of  an  old  brig,  which  is  firmly  secured  to  the 
shore.  Although  not  as  securely  confined  at  night  as  those  at  the  Prison,  yet 
their  insular  position  banishes  the  idea  of  escape  from  their  minds,  unless  they  can 
get  outside  aid  to  procure  boats  with  which  to  leave  the  island.  Although  a  par- 
tially successful  revolt  occurred  in  December  last,  by  which  twenty-two  prisoners 
secured  a  boat  and  escaped,  yet  we  believe  that  with  ordinary  care  the  convicts  can 
be  more  safely  confined  on  this  island  than  at  the  State  Prison. 

It  would  be  exceedingly  dangerous  to  keep  all  the  convicts  at  the  State  Prison 
at  the  present  time.  There  is  prison  room  for  but  little  more  than  half  of  them,  and 
it  is  feared  that  so  large  a  body  of  convicts  thrown  together,  without  sufficient 
means  of  confinement,  would  be  the  signal  for  a  revolt,  which,  unless  the  guards  be 
greatly  increased,  would,  in  all  probability,  be  successful. 

The  lessee  has  under  his  employ  about  thirty  men,  who  act  as  officers  and  guard. 
This  number  is  not,  in  the  estimation  of  your  Committee,  sufficient  to  suppress  a 
revolt  with  certainty,  and  this  number,  when  divided  between  the  Prison  and  the 
island,  does  not  present  that  formidable  appearance  to  the  convict  which  would  dis- 
courage them  from  any  attempt  at  an  outbreak.  It  is  the  custom  of  the  lessee  to 
send  six,  eight  or  ten  prisoners  to  the  woods,  to  procure  wood,  with  but  a  single 
guard.  Escapes  frequently  occur  while  out  in  these  parties.  Prisoners  have  been 
sent  out  from  the  Prison  to  work  on  a  ranch  with  and  without  guard.  But  the 
most  of  the  escapes  are  occasioned  by  the  adoption  of  a  system  denominated  the 
"  trustie  system."  By  this  system,  a  prisoner,  whose  term  of  service  is  about  ex- 
piring, or  who  has  behaved  well,  or  has  been  recommended  to  the  lessee  as  a  gen- 
tleman and  a  man  of  good  standing  and  family,  is  permitted  to  do  light  work,  to  be 
kept  separate  from  the  mass  of  prisoners,  to  go  on  errands  for  miles  in  the  country, 
on  foot  or  on  horseback,  alone ;  to  go  to  San  Francisco  ;  to  sleep  without  the  guard 
at  the  cook  house,  off  the  Prison  grounds,  and  other  liberties,  which  are  frequently 
taken  advantage  of  to  escape.  It  is  believed  that  most  who  are  now  at  large  have 
escaped  by  this  "  trustie  system."  Although  we  are  not  prepared  to  entirely 
condemn  the  "trustie  system,"  as  such,  yet  it  requires  the  exercise  of  the  best 
judgment  to  know  who  to  trust.  It  is  sometimes  advantageous  to  have  some  among 
the  prisoners  who  will  aid  in  giving  information  concerning  rebellions  and  efforts  at 
escapes,  and  to  assist  in  suppressing  revolts.  The  use  of  this  system  has  been  and 
may  be  serviceable,  but  it  should  be  exercised  with  caution,  and  not  to  that  extent 
that  has  been  practised  in  our  State  Prison. 


There  are  few  men  who  have  been  sentenced  to  the  State  Prison — no  matter  for 
what  offense,  no  matter  what  may  have  been  their  former  character — who,  when 
an  opportunity  is  offered  them  to  escape  by  stepping  on  board  of  a  ship  bound  from 
our  shores,  would  not  take  advantage  of  it,  and  thus  regain  their  liberty.  From 
the  numerous  escapes  that  have  been  effected  under  cover  of  this  system  in  this 
State,  we  cannot  but  recommend  that  it  be  discontinued,  as  far  as  they  are  allowed 
to  leave  the  Prison  grounds,  and  that  those  selected  within  the  Prison  grounds 
should  be  selected  with  the  greatest  care. 

The  convicts  at  the  Prison  are  engaged  in  making  brick,  on  grounds  adjoining 
the  Prison  grounds,  which  are  well  adapted  for  the  purpose,  and  under  the  control 
of  General  Estell.  Those  at  Marin  Island  are  engaged  at  quarrying  stone  from  an 
excellent  quarry,  which  we  understand  is  owned  by  General  Estell. 

The  Committee  having  ascertained  the  present  market  value  of  brick  and  stone 
in  the  city  of  San  Francisco,  and  the  quantity  that  can  be  furnished  by  convict 
labor,  are  well  satisfied  that,  with  ordinary  energy  and  judgment,  the  institution 
can  be  made  not  only  a  self-supporting  institution,  but  even  profitable.  Yet  the 
Committee  are  assured  by  the  lessee  that  he  has  lost,  by  keeping  the  State  pris- 
oners, under  his  present  contract,  $127,000.  These  losses,  he  informs  us,  occurred 
in  consequence  of  bad  management  in  the  Prison  matters,  and  that  only  in  the  last 
six  months  has  he  been  able  to  make  any  profit  on  the  Prison  labor.  He  has  now 
favorable  contracts  for  furnishing  bricks  and  stone,  in  the  city  of  San  Francisco, 
and  that  he  has  realized  $45,000  profit  in  the  last  six  months. 

From  evidence,  your  Committee  believe  that,  with  ordinary  care,  a  profit  of  one 
dollar  per  day  to  the  convict  may  be  realized,  over  and  above  all  necessary  expenses, 
such  as  food,  clothing,  guards,  and  working  tools.  Estimating  the  number  of 
working  convicts  at  three  hundred,  we  have,  by  this  calculation,  $1,800  per  week, 
or  $97,200  clear  profit  per  year.  This  calculation  is  made  upon  the  supposition 
that  favorable  contracts  can  be  made  for  the  delivery  of  bricks  and  stone  in  the 
city  of  San  Francisco,  or  at  a  place  no  further  from  the  Prison. 

The  general  management  of  the  Prison,  in  the  opinion  of  your  Committee,  is  not 
such  as  it  should  be  in  order  to  secure  the  safety  of  the  convicts.  Many  regula- 
tions might  be  made,  even  under  the  present  contract,  which,  we  think,  would 
insure  more  certainly  the  security  of  the  convicts.  The  rules  and  regulations  of 
the  guard  are  not  sufficiently  systematic,  nor  are  they  sufficiently  stringent  upon 
the  guard  and  officers.  Liquor  has  been  used  to  excess  among  the  guard  and 
officers.  Prisoners  themselves  have  been  allowed  liquor  by  the  guard,  in  some 
instances.  The  convicts  are  not  required  to  dress  in  uniform,  but  to  retain  the 
clothes  worn  by  them  when  brought  to  the  Prison  ;  so  it  is  difficult  to  distinguish  a 
convict  from  one  of  the  guard.  Their  heads  are. not  required  to  be  shaved  regu- 
larly, nor  are  they  required  to  change  their  clothes  as  often  as  cleanliness  would 
require.  We  believe  that  if  a  system  of  uniformity  of  dress  (which,  by  its  peculi- 
arity, would  attract  attention,)  would,  if  adopted,  tend  to  prevent  escapes ;  and  if 
the  heads  were  required  to  be  shaved  once  a  week,  the  escaped  convicts  would  be 
recognized  and  their  arrest  would  be  facilitated.  It  is  proper  to  remark,  however, 
that,  so  far  as  these  rules  affect  the  police  regulations  of  the  Prison,  their  establish- 
ment was  the  duty  of  the  Inspectors  of  the  State  Prison,  and  the  lessee  would  have 
been  compelled  to  comply  with  them.  In  consideration  of  these  numerous  defects 
in  the  government  and  discipline  of  the  Prison,  by  which  so  many  escapes  were 
effected,  and  also  in  consequence  of  want  of  sufficient  room  at  the  Prison  and 
Prison  grounds,  by  which  the  convicts  could  be  made  secure,  we  made  it  a  part  of 
our  duty  to  investigate  the  remedy  the  State  might  have  to  correct  these  evilH,  by 
retaining  the  contract  with  General  Estell,  the  present  lessee,  or  by  dissolving  the 
present  connection  between  the  lessee  and  the  State  and  making  such  radical  im- 


6 

provements,  both  in  discipline  and  buildings,  as  will  protect  our  citizens  and  insure 
the  security  of  the  convict-. 

The  law  of  1851  made  General  J.  M.  Estell  and  M.  G.  Vallejo  the  lessees  of  the 
State  Prison  for  ten  years.  In  1852,  the  Legislature,  by  a  special  act,  released 
M.  G.  Yallejo  and  made  J.  M.  Estell  the  sole  lessee  under  the  act  of  1851,  upon 
his  filing  his  bond  in  the  office  of  the  Secretary  of  State,  to  be  approved  by  the 
Governor,  in  the  sura  of  $100,000 ;  which  conditions  the  said  Estell  has  complied 
with  A  copy  of  said  bond  is  herewith  reported,  marked  "Exhibit  A."  The 
said  law  of  1851  is  a  contract  entered  into  between  the  State  and  the  lessee,  and 
the  law  regulating  the  construction  of  contracts  generally  must  apply  to  this.  By 
this  law  the  lessee  has,  for  ten  years,  the  sole  charge  of  the  convicts  sentenced  to 
the  State  Prison.  He  is  required  to  "  feed  and  clothe  the  prisoners  and  pay  all 
other  necessary  expenses,  as  that  for  guards  and  tools  to  work  with  ;  to  prepare 
suitable  temporary  buildings  upon  the  grounds  herewith  leased,  or  shall  have  suit- 
able and  secure  Prison  ships  or  vessels,  properly  arranged  for  the  health  and 
security  of  the  convicts,  until  the  State  shall  build  the  State  Prison."  It  then, 
in  a  proviso  to  the  seventh  section,  states  that  "  this  Act  shall  not  be  so  construed 
as  to  confine  the  labor  of  the  prisoners  within  the  walls  of  said  Prison,  or  to  any 
particular  place  or  labor. 

We  believe  that  the  Legislature  is  bound  to  the  contract  as  it  is  made  ;  that  the 
Legislature  has  no  right  to  alter  or  change  that  contract  in  any  material  point,  so  as 
to  require  any  additional  expense  in  keeping  prisoners,  or  by  which  their  labor 
would  be  made  more  unprofitable  to  the  Lessee  without  the  consent  of  said  Lessee. 
That  if  the  Lessee  had  violated  the  contract  so  as  to  work  a  forfeiture  of  the  con- 
tract, that  we  could  not  by  a  Legislative  Act  annul  said  contract ;  but  that  our  rem- 
edy would  be  entirely  judicial.  In  order  to  satisfy  ourselves  more  perfectly  as  to 
the  correctness  of  these  positions,  we  addressed  a  series  of  interrogatories  to  the 
Attorney  General,  and  received  an  answer  from  him  in  which  he  sustains  the  po- 
sition above  laid  down.  The  communication  of  the  Attorney  General  is  reported 
as  exhibit  "  B,"  and  made  a  part  of  this  report. 

From  the  construction  placed  upon  the  statutes  of  1851,  your  Committee  are  not 
satisfied  from  the  evidence,  that  the  Lessee  has  violated  his  contract  in  so  material  a 
point  as  to  work  a  forfeiture  before  any  court  of  justice,  but  from  the  peculiar  word- 
ing of  the  statute  it  seemed  to  be  the  object  of  the  Legislature  to  give  every  ad- 
vantage to  the  Lessee,  in  order  to  enable  him  to  keep  the  prisoners  safely,  and  at 
the  same  time  make  it  a  source  of  profit  to  himself.  We~are  of  the  opinion,  there- 
fore, that  the  Legislature  could  not  compel  the  Lessee  to  clothe  the  convicts  in  uni- 
form, or  shave  their  heads,  or  increase  or  in  any  way  regulate  the  guards,  or  re- 
quire any  additional  temporary  buildings,  or  forbid  the  "  Trustie  system,"  or  re- 
quire him  to  work  the  prisoners  within  the  prison  walls  or  on  the  prison  grounds. 

In  view  of  all  these  positions,  and  the  great  necessity  that  exists  for  additional 
buildings  on  the  State  Prison  grounds,  for  the  safety  and  security  of  the  convicts, 
your  committeB  have  concluded  to  recommend  to  the  Legislature  to  buy  the  said 
lease  from  the  said  James  31.  Estell.  In  answer  to  a  resolution  adopted  by  the 
committee,  the  said  lessee  agrees  to  sell  his  said  lease  to  the  State  for  the  sum  of 
8100,000,  which  proposition  we  submit  to  the  Legislature  and  recommend  that  it  be 
accepted,  and  that  a  bill  prepared  by  the  committee  and  herewith  reported  for  that 
purpose,  be  passed. 

"We  are  induced  to  make  this  recommendation  for  the  following  reasons  :  The 
urgent  necessity  for  additional  prison  room  is  not  only  apparent  to  your  committee, 
but  to  the  whole  community  ;  it  is  required  by  every  consideration  of  reason  and 
justice.     As   the  convicts  now  are,  they  may  at  any  time  by  a  successful  revolt,  be 


cast  loose  upon  society,  and  the  probability  of  their  escape  is  so  apparent  to  the  citi- 
zens of  the  country  adjoining  the  prison,  that  they  live  in  constant  fear,  and  as  testi- 
mony shows,  the  price  of  real  estate  in  the  surrounding  country  has  been  materially 
reduced  in  consequence  thereof. 

The  lessee  cannot  in  our  opinion,  be  compelled  to  build  additional  buildings  on 
the  prison  grounds ;  it  remains  therefore,  the  duty  of  the  State  to  build  this  ad- 
ditional prison  room.  To  make  an  appropriation  and  to  let  out  the  building  of  said 
prison  by  contract,  would,  in  the  estimation  of  your  committee,  require  the  sum  of 
at  least,  three  hundred  and  fifty  thousand  dollars. 

While  we  recognize  the  necessity  of  these  improvements,  we  are  not  prepared  in 
the  present  exhausted  state  of  our  Treasury,  to  recommend  so  large  an  outlay  of 
money,  but  by  the  purchase  proposed,  the  State  becomes  again  the  sole  owner  of  the 
prison  labor,  which  under  proper  management  can,  and  should  be  required  to  do 
this  work,  thereby  saving  to  the  State  a  very  great  outlay  of  treasure.  From  the 
report  of  the  Inspectors,  we  are  informed,  that  there  is  every  kind  of  mechanics 
among  the  convicts,  and  some  as  well  skilled  iu  mechanism  as  can  be  found  outside 
of  the  prison  walls.  Under  a  system  which  your  committee  is  now  prepared  to 
recommend,  this  convict  labor  will  be  applied  to  the  erection  of  these  additional 
prisons,  and  their  completion  effected  as  soon  by  this  means  as  by  letting  it  out  by 
contract,  and  certainly  at  not  more  than  one-third  of  the  expense  We  also,  in  ac- 
cordance with  the  proposition  of  the  lessee  above  referred  to,  recommend  that  the 
property  attached  to  the  prison,  and  necessary  to  the  labor  of  the  convicts,  be  pur- 
chased at  a  price  to  be  affixed  by  appraisers,  two  appointed  by  the  Legislature  and 
one  by  the  lessee,  payable  in  brick  and  stone  in  San  Francisco  at  market  prices. 

The  property  here  referred  to  consists  of  the  necessary  working  tools  for  blasting 
and  dressing  stone,  brick  machinery,  machine  shop  and  steam  engine,  together  with 
sixteen  acres  of  land  lying  adjacent  to  the  prison  grounds,  and  upon  which  is  situ- 
ated the  brick  yard  and  dining  room  for  the  convicts,  with  other  necessary  buildings 
thereon.  This  purchase  we  deem  necessary  to  the  successful  and  convenient  work- 
ing of  the  convicts. 

Should  the  plan  here  suggested  by  the  committee  be  adopted,  and  the  convicts  of 
the  State  Prison  be  placed  under  the  supervision  of  a  warden  or  superintendent,  we 
would  not  recommend  that  all  the  prisoners  be  removed  forthwith  to  the  prison 
ground  for  fear  of  an  outbreak,  but  that  one-half  be  engaged  elsewhere  in  making 
bricks  and  quarrying  stone,  with  which  to  pay  for  the  property  purchased  in  accor- 
dance with  the  agreement  made  with  the  lessee  in  the  resolution  and  answer  above 
referred  to,  which  said  resolution  and  answer  is  herewith  submitted,  marked  ex- 
hibit "C." 

Your  committee  in  the  course  of  their  investigation,  made  some  inquiry  concern- 
ing the  title  the  State  has  to  the  twenty  acres  of  land  on  Point  San  Quentin,  on 
which  the  prison  is  located,  purchased  from  B.  R.  Buckalew,  in  pursuance  of  an  Act 
passed  May  1,  1852,  depends  on  a  Mexican  grant,  which  said  grant  has  not  yet 
been  confirmed,  but  are  assured  by  the  lessee  that  if  said  grant  should  not  be  con- 
firmed that  he  holds  the  pre-emption  claim  to  the  same,  and  that  he  will  make  a  title 
to  the  State  as  soon  as  a  title  from  the  General  Government  can  be  obtained.  Al- 
though we  do  not  believe  the  location  as  good  as  might  have  been  selected,  yet  after 
so  large  an  outlay  of  money  as  has  been  expended  upon  that  ground,  we  are  not  dis- 
posed to  recommend  a  removal  of  the  prison,  if  good  title  can  be  obtained  to  the 
land  purchased  of  Mr.  Buckalew. 

The  Committee  arc  preparing  bills  in  connection  with  the  prison  and  concerning 


8 

the  future  government  of  that  institution,  which  bills  they  will  present  as  soon  as 
the  bill  herewith  reported  shall  have  passed. 

All  of  which  is  most  respectfully  submitted. 

JOHN  T.  CRENSHAW, 

Chairman  Senate  Committee, 

G.  W.  COLBY, 
S.  DAY, 

ASA  KINNEY, 

Chairman  Assembly  Committee, 

E.  J.  CURTIS, 
H.  P.  A.  SMITH, 


B.  C.  WHITING, 

Chairman  Select  Committee, 

H.  HEINTZELMAN. 


A 


APPENDIX    TO    REPORT 


EXHIBITS. 


[A. 


Know  all  men  by  these  presents,  that  we,  James  M.  Estell  as  principal,  and 
John  McDougal,  John  S.  Fowler,  Martin  E.  Cook  and  B.  Frank  Kecne,  as  secu- 
rities, are  held  and  firmly  bound  unto  the  people  of  the  State  of  California  in  the 
sum  of  one  hundred  thousand  dollars  ;  to  the  payment  of  which,  well  and  truly  to 
be  made,  we  bind  ourselves,  our  heirs,  executors  and  administrators,  severally  and 
jointly,  firmly  by  these  presents,  sealed  with  our  seals,  and  dated  this  fourth  day  of 
May,  A.  D.,  1852. 

Now  the  condition  of  the  above  obligation  is  such,  that  whereas,  by  an  Act  ap- 
proved April  10,  A.  D.,  1852,  it  is  provided  that  the  above  mentioned  James  M. 
Estell,  shall  be  constituted  sole  lessee  of  the  prison,  prison  grounds  and  prisoners  of 
the  State,  according  to  the  terms  and  condition  of  "  An  Act  providing  for  the  se- 
curing the  State  Prison  Convicts,  approved  April  twenty-fifth,  one  thousand  eight 
hundred  and  fifty-one,  upon  his  filing  a  bond  with  the  same  sureties  and  the  same 
conditions  as  the  bond  required  by  the  Act  last  aforesaid. 

Now  if  the  said  James  M.  Estell  shall  faithfully  perform  all  the  duties  of  such 
Lessee  as  required  by  law,  and  shall  hold  the  State  free  from  every  expense  for  the 
subsistence,  clothing,  security  and  safe-keeping  of  State  Prison  Convicts  during  the 
continuance  of  such  Lease,  then  the  above  obligation  to  be  void,  otherwise  to  be 
and  remain  in  full  force  and  effect. 


JAMES  M.  ESTELL. 
JOHN  M.  McDOUGALL, 
MARTIN  E.  COOK, 
JOHN  S.  FOWLER, 
B.  FRANK.  KEENE. 

Approved  May  5,  1852, 

JOHN  BIGLER. 


L.  S. 
L.  8. 
L.  3. 
L.  S. 

[l.  S. 


A  true  copy  from  the  original, 


J.  W.  DENVER,    . 

Secretary  of  State. 


20 


[B.] 


Attorney  General's  Office, 
March  12th,  1855, 


i 


Hon.  J.  T.  Crenshaw, 

Chairman  of  the  Senate  State  Prison  Committee, 

Sir: 

Your  communication  of  the  8th  inst.,  containing  the  following  questions  for 
my  official  consideration  and  answer  is  before  me. 

1st.  Has  the  Lessee  of  the  State  Prison  the  right  under  the  contract  made  with 
the  State,  to  work  the  prisoners  at  Monterey,  at  Mariposa,  or  at  any  place  away 
from  the  prison  or  the  prison  grounds,  or  to  send  them  on  errands. 

2d.  In  case  of  a  violation  of  the  contract  on  the  part  of  the  lessee  can  the  Leg- 
islature by  an  act  declare  the  contract  forfeited,  or  is  the  remedy  entirely  judicial  ? 

3d.  Can  the  Legislature  by  act,  in  any  manner  compel  the  lessee  to  clothe  the 
convicts  in  uniform  or  prescribe  the  kind  and  quantity  of  clothing  or  food,  or  estab- 
lish regulations  of  the  prison  by  which  the  price  of  keeping  prisoners  would  in  any 
manner  be  increased  ? 

4th.  Can  the  Legislature  in  any  manner  amend  the  law  of  1851  so  as  to  com- 
pel the  present  lessee  under  that  law  to  work  the  prisoners  in  the  State  Prison  or  on 
the  State  Prison  grounds  ? 

The  act  providing  for  "  securing  State  Prison  convicts,"  passed  April  25th,  1851, 
is  a  contract  between  the  State  and  the  lessee  of  the  State  Prison,  and  must  be 
construed  by  the  ordinary  rules  of  construction  applicable  to  contracts.  It  is  liable 
to  the  objection  of  being  loosely  drawn,  and  apparently  contradictory.  The  spirit 
of  the  act,  being,  as  I  conceive,  repugnant  to  its  letter. 

It  is  scarcely  probable  or  possible,  that  the  framers  of  the  law  intended  that  the 
lessee  should  have  the  privilege  of  transporting  State  prisoners,  to  any  great  dis- 
tance from  the  prison  grounds,  and  there  work  them,  yet  a  literal  construction  of 
the  proviso  of  section  7  of  the  act  would  give  him  that  power.  This  construction, 
however,  I  conceive  would  render  inoperative  and  nugatory  all  the  other  provisions 
of  the  act,  for  what  would  be  the  necessity  for  a  State  prison  located  at  a  particular 
point  wherein  to  confine  prisoners,  if  the  lessee  can  remove  and  keep  them  at  any 
place  in  the  State  with  no  guaranty  for  their  safe  keeping,  but  his  own  discretion. 

One  of  the  most  obvious  and  wholesome  rules  of  construing  statutes,  is  to  put 
Buch  construction  on  them,  "  that  one  clause  shall  not  frustrate  and  destroy,  but  on 
the  other  hand,  explain  and  support  another ;  sound  exposition  requiring  effect  to 
be  given  to  every  significant  clause,  sentence,  or  word  in  a  statute." 

Applying  this  rule  in  the  present  case,  I  am  of  the  opinion  that  the  proviso  re- 
ferred to  means  no  more  than  that  the  lessee  shall  not  be  compelled  to  work  the 
prisoners  in  the  prison  or  even  in  the  prison  grounds,  but  shall  have  the  power  to 
work  them  at  such  a  distance  from  the  grounds  as  shall  be  consistent  with  their  safe 
confinement.  What  is  such  a  distance,  is  a  question  more  for  the  consideration  of 
the  parties  to  the  contract  than  for  mine. 

In  reply  to  your  second  enquiry,  I  am  clearly  of  the  opinion,  that  the  Legislature 


21 

has  no  power  to  repeal  the  act,  and  declare  the  contract  at  an  end,  without  the  con- 
sent of  the  lessee. 

It  is  a  contract  of  the  most  solemn  character,  by  which  the  State  is  as  much 
bound,  as  an  individual  would  be  in  a  similar  case.  It  has  been  partly  performed, 
and  is  continuing  to  be  performed. 

The  question  whether  the  lessee  has  performed  the  conditions  imposed  on  him  by 
the  act  is  strictly  a  judicial  one,  and  as  the  Legislature  has  under  our  constitution 
no  judicial  powers,  an  act  declaring  the  contract  rescinded  would  have  no  other  effi- 
cacy, than  as  a  mere  expression  of  opinion  by  that  body.  Whether  a  court  of 
equity  would  upon  a  suggestion  of  non-compliance  with  the  conditions  of  the  act, 
be  warranted  in  decreeing  a  rescission  of  it  is  a  question  I  do  not  think  is  embraced 
in  your  inquiries,  and  therefore  I  will  not  give  any  opinion  upon  it. 

As  to  your  third  enquiry  I  am  of  the  opinion,  that  under  the  seventh  section  of 
the  act,  the  inspectors  have  ample  powers  to  make  such  regulations  about  clothing, 
food,  &c,  as  shall  be  necessary  for  the  health,  safe  keeping,  and  cleanliness  of  the 
prisoners,  subject  to  the  proviso  referred  to  above.  This  power  of  the  inspectors 
is  delegated  to  them  by  the  Legislature,  but  the  act  of  delegation  itself,  is  a  part  of 
the  contract,  and  cannot  be  rescinded  by  the  State,  without  the  consent  of  the  lessee. 

I  do  not  think  the  Legislature  has  the  power  in  any  manner  to  change  the  law 
in  a  material  point  or  to  impose  any  duties  on  the  lessee,  not  contemplated  by  the 
-  it  originally  passed  without  his  consent. 

The  remedy  for  the  State,  is  either  by  a  suit  on  the  bond  given  by  the  lessee  to 
secure  the  faithful  performance  of  his  duties,  or  by  a  bill  in  equity  (provided  the 
courts  will  entertain  it)  to  procure  a  rescission  of  the  contract. 

M.  CONNELL, 

Attorney  General. 


22 


[C. 


Resolved,  That  John  T.  Crenshaw,  a  member  of  this  Committer  be  authorized 
to  state  to  James  M.  Estell — 

First,  that  the  Committee  on  behalf  of  the  State  cannot  give  any  encouragement 
that  the  State  will  accept  his  proposition  dated  March  16th,  1855,  made  by  him. 

Second,  that  the  Committee  will  recommend  to  the  two  branches  of  the  Legisla- 
ture to  purchase  the  State  Prison  contract  and  pay  therefor  one  hundred  thousand 
dollars,  in  State  bonds,  payable  in  ten  years  from  the  date  of  their  issue,  with 
semi  annual  interest,  at  the  rate  of  seven  per  cent,  per  annum. 

Also,  that  the  State  purchase  the  sixteen  acres  of  land  belonging  to  the  brick 
yard,  the  engine,  brick  machinery  and  other  valuable  improvements,  at  their 
appraised  value,  to  be  appraised  by  three  Commissioners,  one  Commissioner  to  be 
appointed  by  General  Estell  and  the  other  two  to  be  elected  by  a  joint  convention 
of  the  two  branches  of  the  Legislature.  All  this  property  to  be  paid  for  by  the 
State  in  brick  and  stone  manufactured  or  worked  by  the  convicts,  to  be  delivered  at 
San  Francisco  in  market  prices. 

WHITING. 


Sacramento  City,  March  18,  1855. 
Chairman  Committee  on  State  Prison  : 
Sir: 

In  answer  to  your  communication  of  yesterday,  I  will  say  I  could,  by  a  sale  to 
other  parties,  or  by  hiring  out  the  prisoners  to  contractors,  make  a  much  larger 
amount  of  money  than  by  the  acceptation  of  the  terms  proposed  by  the  Committee ; 
but  I  am  fully  persuaded  the  convicts  cannot  be  kept  safely  with  the  present  means 
for  their  confinement. 

If  the  Committee  would  recommend  an  appropriation  to  build  the  Prison  and 
Prison  walls.  I  would  greatly  prefer  holding  the  present  contract ;  but,  having 
been  assured  by  yourself  there  is  no  probability  of  such  a  recommendation,  and 
fearing,  from  the  exposed  condition  of  the  Prison,  a  successful  revolution  might 
occur  whilst  I  am  responsible,  I  am  compelled,  reluctantly,  to  accept  the  terms 
proposed  to  be  recommended  by  the  Committee  in  Mr.  Whiting's  resolution. 

I  am,  very  respectfully, 

Yours, 

J.  M.  ESTELL, 

Lessee  State  Prison 


I 


5-1    \ 


•s^  i  ^xrr^ 


uayioru  biw» 

Makers 
Syracuse,  N.  Y.     | 
•AT.JM.  21.  1908 


